Riding the Tiger: China’s Struggle With Rule of Law

Twenty years ago, China expert Pitman Potter cited the Chinese proverb, “If you ride a tiger, it is difficult to dismount (qi hu nan xia),” likening the rider to the Chinese Communist Party (CCP) trying to guide the state. As 2013 draws to a close, that analogy continues to hold true, particularly when it comes to legal reform.

Although relative freedom has become possible in the growing private sector of the economy, the Party’s version of the rule of law continues to control legal institutions. Meanwhile, public discontent has grown, fed by widening economic inequality, widespread corruption, official arbitrariness, land theft by local governments, looseness of Party discipline, the rise of privileged elites and a persistent lack of protection for private rights.

Reuters

Fearful that China might experience the same fate as the former Soviet Union, President Xi Jinping is leading a campaign “to silence those who advocate using the constitution to restrict state power.” The result is continuing repression of dissent and discontent continues, especially in the streets.

One of the better-known examples is that of Xu Zhiyong, a well-known rule of law and transparency activist who is being prosecuted because he “seriously disturbed public order” by organizing demonstrations in Beijing that demanded that officials disclose their assets. Other members of the network of activists that he founded have also been arrested as part of a current crackdown on dissent. Although the Beijing protests associated with Xu were brief, Chinese authorities were reportedly “unnerved by the group’s ability to harness public disgust over corruption and social instability.”

Beijing’s campaign has been extended from the street to universities. A legal scholar at a leading law school in Shanghai was recently dismissed after publishing an article online criticizing Xi for attacking Constitutionalism. His firing followed the dismissal in October of a controversial, liberal-leaning economics professor at Peking University who said he was forced out because of his political views.

Yet at the same time, there have been a few advances in judicial reform. Zhou Qiang, President of the Supreme People’s Court has strongly advocated reforms of the way the courts work. The results of his efforts are now starting to show. The Supreme Court Monitor, reporting on an opinion on judicial reform issued by the court in October, noted that one of the issues it called for is the need is to ”uphold judicial independence and implement the responsibilities of the courts under the law.”

Steps have been taken to increase the transparency of court activities. The Court has announced that “judgment documents from more than 3,000 courts” will be posted online, and opinions of the Court and provincial high courts are already being posted. Courts are increasingly broadcasting corruption cases live on social media because, according to the spokesman for the SPC, “Public supervision via the Internet is now the most important channel to monitor the obstruction of justice.”

Reform must go further by increasing judicial independence from police, prosecutors, local governments and the CCP. One hopeful sign appeared recently when Minister of Public Security Meng Jianzhu criticized the previous practice of having local Political-Legal Committees, composed of local officials, advise judges of the results they favored in specific cases. The South China Morning Post recently reported, citing judges, that provincial and lower-level courts would no longer “coach decisions.” (Instructions would, however, continue to be given in cases related to defense or foreign diplomacy.)

Outside the courts, other legal reforms are progessing slowly. The extent to which police can impose long-term imprisonment without trial remains unclear. Police will no longer be authorized to send people accused of minor crimes, including arousing popular protest, to Reeducation Through Labor camps. However, police can still condemn alleged law violators to confinement under similar conditions. Meanwhile, reports suggest that some of the labor camps are being turned into compulsory drug rehabilitation centers to which drug addicts can be sent for two years or more without trial. Sex workers, too, are being sent to "custody and education centers” to do unpaid manual labor for six months or longer.

The economic reforms begun in 1978-79 introduced the principle of “rule of law” alongside those inherited from Mao and Deng Xiaoping, but without loosening CCP domination. If popular resentment continues to mount, the rider could find the tiger increasingly tough to handle.